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FROM “WHOPPER” TO MUSHROOM CLOUD:
EN BANC CAV DECIDES A TALE OF TWO CRAWFORDS

[Posted December 29, 2009] Just over a year ago, a panel of the Court of Appeals decided a capital murder appeal that I described as “a whopper.” In Crawford v. Commonwealth, the panel ironically analyzed the conviction under the US Supreme Court precedent of Crawford v. Washington. That panel reversed all but one of the defendant’s convictions (that one was for the relatively-innocuous offense of grand larceny). But the court granted en banc review, and today, the full court hands down 61 pages’ worth of jurisprudence on the subject, also under the name Crawford v. Commonwealth. Given the length of today’s opinions, I am going to have to post analysis today on the majority opinion, and then follow that up tomorrow morning with a discussion of the two dissents.

I described the facts of this case when I originally reported on it last year; you can click on this link to see that analysis. Today, a majority of the court affirms all of the convictions, with last year’s panel-majority author, Judge Elder, writing one dissent and Judge Beales filing another. Judge Humphreys gets the honor of drafting the opinion of the court.

From the title of this essay, you will already have guessed that today’s ruling is, at least in the appellate context, volcanic. The court initially agrees with the defendant that the trial court’s foundation for admitting a challenged affidavit was incorrect; the trial court had held that the killing of the victim triggered the doctrine of forfeiture by wrongdoing. That requires proof of a specific intent to shut the victim up, the majority notes (and the dissents don’t fuss over that conclusion), and there was no such proof here.

The majority momentarily toys with the idea of a remand for the trial court to consider whether there is evidence in the record from which it might infer that the murderer killed the victim in order to prevent testimony. But it finds an alternate ground for admission of the evidence, applying the often misunderstood (and, some appellate scholars might argue, just as often misapplied) right-for-the-wrong-reason doctrine. It rules that the victim’s affidavit wasn’t testimonial hearsay under Crawford v. Washington, so its admission was not error at all.

Okay; let’s assume that you have read Crawford recently, and you recall Justice Scalia’s enumeration of the kinds of documents that are testimonial. You’re ticking them off on your fingers, and eventually you get to – aha! Here they are; affidavits. So if the Big Supremes classify affidavits as testimonial hearsay, how can seven judges of this court find that this affidavit wasn’t?

By looking to the purpose of this affidavit; that’s how. An affidavit is clearly hearsay if its primary purpose is to set down testimony that is to be used in a criminal prosecution. But that wasn’t the purpose of this affidavit at all; in this case, the victim made an affidavit in order to obtain a protective order to keep her husband away from her. That’s a civil proceeding, unrelated to the eventual criminal prosecution. Accordingly, the admission of the affidavit didn’t violate the Sixth Amendment, so the capital murder conviction stands.

This appears to be an issue of first impression; not only here, but elsewhere, too. That makes this opinion an even more intriguing read, and it also sets the case up as a target for further appellate review in the Supreme Court of Virginia (and, foreseeably, in Washington after that).

There are some fascinating procedural issues along the way to the court’s conclusion here; I sense that a few law professors are going to read this opinion and start getting ideas for final exams. For example:

The majority applies recent caselaw refining the right-for-the-wrong-reason doctrine. The appellate courts have recently clarified the circumstances in which they find an issue to have been waived by the appellee and when they will affirm on an alternate ground from that relied upon below. Since no additional factfinding was necessary, the majority rules, it’s perfectly permissible to affirm on the basis that the statement wasn’t testimonial. Crawford’s lawyer has to be pulling her hair out over this one; she no doubt regarded as fully settled the question of whether this was testimonial. How much better than a concession can you get? But concessions of law, the court notes, aren’t binding on the court. And as I mentioned in the preceding bullet point, this one wasn’t binding on the AG during the appeal anyway.

In his brief, Crawford listed a separate question presented relating to the admissibility of statements by two of the victim’s co-workers. But this en banc rehearing came at the behest of the Commonwealth, and the AG hadn’t listed that issue among the questions to be decided on rehearing. That means that Crawford doesn’t get to add to the list of issues by a sort of cross-error process. If he wanted to get a new ruling on that issue (the only major one he lost before the 2008 panel, which remanded for a first-degree murder retrial), he had to seek en banc rehearing himself. Hence this appellate tip: If you mostly won before the panel, and you want the court to reconsider the issue you lost, you have to seek your own rehearing.

In the trial court, the prosecutor had conceded that he didn’t have any evidence that Crawford killed his wife in order to prevent her from testifying. Normally, that concession is binding on appeal. But citing a doctrine that probably infuriates criminal defense lawyers who handle appeals, the majority notes that the Attorney General, who takes over these cases once they hit the appellate court, has the right to repudiate the Commonwealth’s Attorney’s concession and urge that there was, after all, such evidence in the record. Indeed, just such a tactic works today, leading to the majority result.

In truth, the concession was perhaps less than that; the trial judge sua sponte offered during colloquy the view that the affidavit was testimonial, and the prosecutor didn’t fuss with that characterization. He stopped short of agreeing with the principle, but this would likely be regarded as silence by assent anyway. Quick lesson: When the trial judge makes a ruling out of the blue with which you disagree, you can’t just sit in silence merely because his honor seems to be waxing philosophical, instead of responding to a motion or objection. You need to object then and there.

Now, concessions by the defense lawyers, it seems, are another matter. Here, during oral argument before the appellate court, Crawford’s lawyer conceded that if the affidavit was admissible, then there was enough evidence to convict. That marks the end of the sufficiency analysis for the majority, which holds that this concession ends its obligation to address the merits of the matter. Having decided that the affidavit wasn’t testimonial and was therefore admissible, the court today declines to parse the evidence to determine sufficiency. I have two dollars in my pocket that say that this approach will cause howls of protests from defense lawyers who claim that ‘tain’t fair that the prosecution gets excused from its concessions, while the defense gets skewered on its concessions. Anybody want a piece of that action? C’mon; my two dollars are waiting . . .

Judge Elder, the author of the original panel decision, dissents, and he’s joined by the chief judge. He agrees with the conclusion that the forfeiture-by-wrongdoing doctrine was wrongly applied to admit this evidence, but he breaks with the majority on the question of whether the affidavit was testimonial or not. In doing so, he examines not only the Crawford v. Washington opinion, but also this year’s seismic decision in Melendez-Diaz v. Massachusetts, and concludes that the Big Supremes made no such distinction as to the purpose for which the affidavit is made – an affidavit is an affidavit, and those are testimonial by nature.

Judge Elder also disagrees with the majority’s decision to permit the Attorney General to take a different position on appeal than did the Commonwealth’s Attorney at trial. He notes that while the AG can say whatever he wants, the real application of this procedural bar would be to prevent the Commonwealth’s Attorney from taking a different position on retrial than he did in the first trial. He would remand the case for a new trial on all charges except grand larceny.